O'Neil v. City of Portland

• Citation: 59 Or. 84,113 P. 655
• Parties: O'NEIL v. CITY OF PORTLAND.
• Decision Date: 28 February 1911
• Court: Supreme Court of Oregon

113 P. 655

59 Or. 84

O'NEIL v. CITY OF PORTLAND.

Supreme Court of Oregon

February 28, 1911

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by J.P. O'Neil against the City of Portland. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

This is an action for damages, alleged to have been sustained by reason of the nonpayment of certain warrants issued by defendant city of the United States National Bank, or order pursuant to plaintiff's direction, upon a special fund to be raised by the levy and collection of assessment upon the real property affected by the improvement of Goldsmith street, from Albina avenue to Russel street. The contract dated February 10, 1904, under which it is alleged the work was performed and accepted by the city, refers to the material provisions of the city ordinance, authorizing the street improvement, and is fully set out in the complaint. The complaint also contains copies of the several warrants some of which are dated September 19, 1904, and the remainder October 20, 1904, amounting in the aggregate to $7,171.73 the general form of which warrants is as follows: "No. 19.910. Portland, Or.. Sept. 19, 1904. To the Treasurer of the City of Portland. Pay to U.S. National Bank or order seven hundred thirty-seven and 77-100 dollars out of that particular portion of the fund for the improvement of Goldsmith street from Albina avenue to Russell street. Weinhard Tract No. 10, assessed against the property liable to assessment for the work for which this warrant is issued. $737.77. Geo. H. Williams, Mayor. Attest: Thos. C. Devlin, Auditor of the City of Portland, by S. Grutze, Deputy."

The warrants were indorsed to plaintiff, who is and has been the owner and holder thereof for more than four years prior to July 7, 1909, the date on which the complaint was filed. By the terms of the contract, and the charter and ordinance of the city of Portland, made a part of same, it was the duty of defendant to provide the special fund for paying the warrants. On August 18, 1904, and November 18, 1905, respectively, the city passed ordinances, making an assessment and reassessment for the improvement of Goldsmith street, and attempted to provide a special fund for the payment of the warrants, but such ordinances have been adjudged wholly void. By reason of the city's negligence in not enacted a valid ordinance and making such assessment, and not exercising due diligence in prosecuting to speedy conclusion the suits involving the validity of the assessments, defendant has wholly failed to provide said special fund, although nearly five years have elapsed since the warrants were issued: no part thereof has been paid, and plaintiff has thereby been damaged in the sum of $7,171.73, the amount of said warrants, and interest thereon. The contract was upon the condition that the contractor should look alone for payment for material and work to the fund to be assessed upon the property liable to pay for such improvement and paid into the city treasury for that purpose.

In the presentation of his claim, plaintiff has complied with section 9 of the city charter. Defendant filed a demurrer to the amended complaint. The circuit court sustained the demurrer and dismissed the action, from which judgment plaintiff appeals.

Robert J. O'Neil, for appellant.

Frank S. Grant (John P. Kavanaugh, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The only question presented in this case is the ruling of the circuit court upon the demurrer. The contention of plaintiff is that the city, for nearly five years, has failed to comply with the essential requirements of its charter; has not exercised due diligence in the matter, and has negligently failed to provide the special fund for the payment of plaintiff's warrants; that there has been in this respect an unreasonable delay on the part of defendant, and that it is responsible in damages. Counsel for ...